On January 31, the Consumer Financial Protection Bureau (CFPB) published a Small Entity Compliance Guide (Guide) to help the financial industry understand the Prepaid Account Rule (Prepaid Rule). The Prepaid Rule was issued in October of 2016, and amends Regulations E and Z to provide consumer protections to “prepaid accounts,” such as general use prepaid cards and virtual wallets that store funds electronically. The Guide is not meant to change the Prepaid Rule, introduce additional regulatory requirements or provide official staff commentary. Rather, it offers a Plain English summary of the Prepaid Rule and tools to help the consumer financial services industry determine whether the scope of the Prepaid Rule covers a particular financial product. It also contains charts and reference tools to help business line and compliance staff understand and comply with the Prepaid Rule by the effective date, October 1, 2017. Though the Prepaid Rule is not yet effective, the CFPB is actively bringing enforcement actions regarding prepaid accounts, using its authority to take action against unfair, deceptive, and abusive acts and practices. On February 1, the CFPB announced that it ordered Mastercard and UniRush to pay a civil money penalty of $3 million and $10 million in restitution for system failures which prevented users of the RushCard, and government benefit and payroll cards offered by UniRush, to access their funds, and caused errors in the processing of debits and credits to over 45,000 consumer accounts. The CFPB alleged that UniRush failed to provide adequate service to impacted consumers and provided inaccurate account information.
On January 24, the Office of the Comptroller of the Currency (OCC) issued supplemental examination procedures for risk management of third-party relationships applicable to national banks and federal savings associations. These examination procedures are intended to supplement OCC Bulletin 2013-29, “Third-Party Relationships: Risk Management Guidance,” issued October 30, 2013. In conjunction with existing guidance, the supplemental procedures are expected to help OCC examiners determine the scope of an institution’s third-party risk management examination, and instruct examiners to perform only relevant objectives and steps, noting that every objective or step will seldom be necessary. Thus, examiners can adapt examinations in accordance with the level of risk and the complexity of an institution’s third-party relationships. With respect to an institution’s third-party relationships, the supplemental procedures detail how examiners should assess both the quantity of risk, such as operational, compliance, reputation, strategic and credit risk, as well as the quality of risk management at all stages of a relationship, including planning, due diligence, contract negotiation, ongoing monitoring, termination and contingency planning. An institution’s rating for the quality of its third-party risk management will be impacted by the adequacy of the personnel and control systems performing related supervisory and risk management functions.
Fed Announces Capital Planning Relief for Banks Under $250 Billion In Assets
On January 30, the Board of Governors of the Federal Reserve System (Federal Reserve) finalized a rule adjusting its capital plan and stress testing rules, effective for the 2017 cycle. The final rule removes the qualitative assessment of Comprehensive Capital Analysis and Review (CCAR) for large and noncomplex firms, which are bank holding companies and U.S. intermediate holding companies of foreign banking organizations with total consolidated assets between $50 billion and $250 billion, total nonbank assets of less than $75 billion, and that are not identified as global systemically important banks. Large and noncomplex firms will still be required to meet their capital requirements under stress as part of CCAR’s quantitative assessment and will be subject to regular supervisory assessments that examine their capital planning processes. The largest and most complex bank holding companies will remain subject to the qualitative and quantitative components of CCAR, and the Federal Reserve may continue to object to their capital plans on both qualitative and quantitative grounds. The final rule also decreases the amount of additional capital a firm can distribute to shareholders in connection with a capital plan that has not been objected to without seeking prior approval from the Federal Reserve from 1.0% to 0.25% of Tier 1 capital beyond the amount in its capital plan.
State Banking Regulators Release BSA/AML Self-Assessment Tool
State regulators and the Conference of State Bank Supervisors have released a new voluntary self-assessment tool to help banks better manage Bank Secrecy Act and anti-money laundering risk. The tool is meant to help institutions better identify, monitor and communicate BSA/AML risk, reduce uncertainty surrounding BSA/AML compliance and foster greater transparency within the industry.
Enforcement & Litigation
On January 24, the New Jersey Supreme Court adopted the substantial-interest test to determine choice-of-law questions in the application of statutes of limitations. New Jersey’s statute of limitations applies if (1) New Jersey has a substantial interest in the maintenance of the claim; and (2) there are no “exceptional circumstances” that “make such a result unreasonable.” The Court also found that the first part of the test is met by the state’s interest in deterring New Jersey manufacturers from placing dangerous products into the stream of commerce. This ruling is likely to result in plaintiffs suing local defendants in New Jersey on claims time-barred elsewhere. For more information, view the client alert issued by Goodwin’s Products Liability and Mass Torts Practice.
On January 24, the Federal Deposit Insurance Corporation, the Federal Reserve, and the OCC announced a $65 million fine assessed against a default management services company. The company’s predecessor had consented to a cease and desist order in 2011, stemming from allegations that it had engaged in unsafe or unsound practices in providing default management services to financial institutions. Specifically, the agencies alleged that the company had engaged in unsafe and unsound banking practices in connection with document execution services that it performed on behalf of financial institutions. View the Enforcement Watch blog post.
On January 20, the Ninth Circuit affirmed a trial court ruling that ordered three tribal lending entities to comply with the CFPB’s civil investigative demands. The CFPB’s investigation concerns whether small-dollar online lenders or similar persons had engaged in illegal advertising, marketing, or collection practices in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Truth in Lending Act, the Electronic Funds Transfer Act, the Gramm-Leach Bliley Act, and other consumer protection laws. During the course of the investigation, it served several investigative demands on the three tribal lending entities, to which the entities’ affiliated tribes directed them not to respond on grounds of tribal sovereign immunity. View the Enforcement Watch blog post.
On January 20, the U.S. Attorney’s Office for the Southern District of New York announced that it had settled a recently filed lawsuit against a national bank, resolving allegations of mortgage discrimination. As previously covered, the government alleged that from 2006 to 2009, the bank charged minority borrowers higher rates and fees on home loans in violation of the Fair Housing Act and the Equal Credit Opportunity Act. View the Enforcement Watch blog post.
On January 23, the CFPB announced that it entered into consent orders with affiliated mortgage servicers, resolving alleged violations of the Real Estate Settlement Procedures Act (RESPA), the Fair Credit Reporting Act (FCRA), and the Consumer Financial Protection Act’s (CFPA) prohibition on deceptive acts or practices. For additional information, view the Enforcement Watch blog posts here and here.
Tax reform is high on the agendas of both the House Ways and Means Committee and the Trump administration. This alert summarizes key aspects of their tax reform proposals and their implications for REITs and the real estate industry. For more information, view the client alert issued by Goodwin’s Real Estate Industry and Tax practices.
On February 9, Goodwin is co-hosting a speaker panel of entrepreneurs, investors and buyers, who will provide an update on Fintech, with the Yale Entrepreneurial Society (YES). Attendees will include current students and alums of Yale, as well as those from the broader Boston Fintech community. For further information, please email firstname.lastname@example.org.
Carl Metzger, a partner in Goodwin's Financial Industry and Business Litigation practices and Chair of the firm's Risk Management and Insurance practice, will moderate the panel, “What Could a Hacking Event Mean to Directors and Officers?” This cutting-edge panel will explore the intersection of cyber events and potential corporate director and officer liabilities. Cyber industry experts will discuss ‘hacking,’ and the moderator will lead the panelists in a discussion of the possible boardroom liabilities. The group of experts will also cover best board practices regarding cyber liability on proactive (pre-breach) and reactive (post-breach) bases. For more information, please visit the event website.
Alison Douglass, partner in Goodwin’s Financial Industry Practice and ERISA Litigation Practice and Scott Webster, chair of Goodwin’s ERISA & Executive Compensation Group will be panelists at the Callan Associates Workshop. The discussion will focus on "Facing Today’s Challenges: Toward More Effective Fiduciaries."
The premier event for Community Bank CEOs. At the 2017 ABA National Conference for Community Bankers, we’ll develop strategies that take into account the community bank of now, but look ahead to new opportunities. Goodwin is a sponsor. For additional information, please visit the event website.